Below the Fold

Crackdown on Leakers From Obama to Trump Chills A Free Press

Crackdown on Leakers From Obama to Trump Chills A Free Press

Journalists often publish information taken from leaked classified documents. Does the First Amendment protect them from prosecution for doing so? The Supreme Court has not considered that exact question, but Bartnicki v. Vopper suggests that journalists would indeed be protected as long as they were innocent recipients of the information—that is, they did not participate in or encourage the illegal activity of leaking classified information. Under the Espionage Act of 1917, the government would have to prove that the journalists published with the intent to hurt the United States, a requirement that would likely be difficult to satisfy. The leakers, of course, do risk prosecution, and journalists can be ensnared in an investigation to discover the names of the confidential sources who provided the information to them. Aggressive prosecution of leakers began under President Obama – with the most famous case, Edward Snowden, still in hiding in Russia – and continues under President Trump. Attorney General Jeff Sessions is rumored to even be considering a lie detector test to ferret out leakers.

April 18, 2018 Below the Fold, Leaks, News Gathering
First Amendment Watch To Co-Sponsor Talk On “Free Speech on Campus and Academic Freedom in the Trump Era”

First Amendment Watch To Co-Sponsor Talk On “Free Speech on Campus and Academic Freedom in the Trump Era”

First Amendment Watch in collaboration with  NYU’s Steinhardt School of Culture, Education, and Human Development, New-York Historical Society and the Institute for Constitutional History will sponsor a talk for NYC educators by Robert Post, First Amendment scholar and former dean of Yale Law School. The topic, “Free Speech on Campus and Academic Freedom in the Trump Era,” will address important First Amendment issues facing educators and students. The talk will be held in  NYU’s Steinhardt School of Culture, Education, and Human Development, East Building (239 Greene Street), 3rd floor, on Monday, April 30, 4:30-6:15. Interested Educators please contact Robert Cohen (rpc6@nyu.edu) for more information about the event.

April 13, 2018 Below the Fold, Campus Speech
Countering Fake News Networks

Countering Fake News Networks

Organizations are mounting efforts to stop the spread news, some to good effect.

April 10, 2018 Below the Fold, Fake News, Threats
Gene Policinski, Chief Operating Officer, Newseum Institute and First Amendment Center of Newseum Institute

Gene Policinski Commentary: Sinclair, Next Time Just Put Your Name To The Message

The Newseum Institute’s First Amendment expert, Gene Policinski, originally published this commentary on April 5, 2018, on the Newseum blog, and has given First Amendment Watch permission to reprint.   _________________________________________________________________________________ Sinclair Broadcasting’s recent promotional message on the state of today’s news — delivered to its TV audiences nationwide — is as protected by the First Amendment as it was an[Read More…]

April 7, 2018 Below the Fold, Fake News, Threats
Can President Trump and Other Public Officials Block Dissenting Voices on Social Media?

Can President Trump and Other Public Officials Block Dissenting Voices on Social Media?

President Trump blocked some of his critics on his Twitter handle, @realDonaldTrump, prompting a lawsuit arguing that such action violated their First Amendment rights. The lawsuit raised questions about the use of social media sites by public officials. Clearly, a personal website of a public figure is not subject to First Amendment restrictions, and so the site operator can block users. But a site run by the government, or run by a public official for his public business, would likely be categorized as a limited public forum protected by the First Amendment. Officials would violate the First Amendment if they discriminated against posters because of their viewpoint. But is @realDonaldTrump a personal site or an official government site? That’s a key question. He started the account in 2009, when he was a private citizen, but now uses it to share policy statements and his views on public issues.

April 4, 2018 Access, Below the Fold, News Gathering
Discrimination or Free Speech? What’s At Stake in the Wedding Cake Conflict

Discrimination or Free Speech? What’s At Stake in the Wedding Cake Conflict

Jack C. Phillips, the owner of Masterpiece Cakeshop in Lakeland, Colorado, refused to design and create a wedding cake for a celebration of a same-sex marriage. He claims that creation of the cake is artistic expression protected by the First Amendment’s free speech and free exercise of religion clause. But the same-sex couple and Colorado argue that Phillips’ work on the cake is not expressive conduct according to the law and that the state has a significant interest in preventing discrimination based on sexual orientation. What will the Supreme Court say when it hears the case?

April 2, 2018 Artistic Speech, Below the Fold, Speech
Lessons from Berkeley on Campus Free Speech

Lessons from Berkeley on Campus Free Speech

Free-speech watchdog FIRE’s mission is more important than ever on the nation’s college campuses.

March 31, 2018 Below the Fold, Campus Speech, Speech
Are Student Walkouts Protected By the First Amendment?

Are Student Walkouts Protected By the First Amendment?

After the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, students around the country quickly began to protest gun violence. One way gaining much attention: student walkouts. School administrators have responded both positively and negatively to these demonstrations. Now various advocacy groups are calling for  a national walkout for 17 minutes at 10 a.m. March 14 in solidarity with the victims of the Florida tragedy. Are these protests protected by the First Amendment?

March 29, 2018 Assembly, Below the Fold, Speech
Catherine Ross on Student Walkouts: “What is at stake in teaching young people how to live liberty—particularly how to exercise their expressive rights—is nothing less than the future of our democracy.”

Catherine Ross on Student Walkouts: “What is at stake in teaching young people how to live liberty—particularly how to exercise their expressive rights—is nothing less than the future of our democracy.”

Our guest writer and constitutional law scholar, Catherine Ross, speaks out about the student protests rocking the nation from the March 14 walkouts to the March for our Our Lives movement and looking ahead to the next planned protests on April 20th. Her book, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights, excerpted on FAW looks at important free speech issues relevant to today’s movement.

March 29, 2018 Assembly, Below the Fold, Speech
President Trump’s Plans for Libel Laws

President Trump’s Plans for Libel Laws

President Trump and his team want to ‘open up’ libel laws. The goal: to make it easier to sue media organizations for unfavorable coverage. But there is little that the President can actually do to change the libel laws. There is no federal law on libel. State laws control libel, and all such laws are subject to stringent First Amendment protections for the press and other speakers that the Supreme Court has imposed through cases such as the landmark New York Times v. Sullivan decision in 1964. However, threats to loosen the libel laws is noteworthy as part of a larger effort to criticize the press and attack its credibility.

March 21, 2018 Below the Fold, Libel